p. 1687
The conflict between the fishing admirals and the justices was brought to the attention of the Board of Trade who sought the opinion of the Attorney
General. That officer reported that the whole authority of the fishing admirals
was limited to the determination of differences arising between the masters
of fishing boats, and the inhabitants, or any bye-boat-keepers, which was a
sort of civil jurisdiction as far as it extended; whereas the authority of
justices touched only breaches of the peace.
But the struggle between the rival forces was not terminated by this
expression of opinion. The will on the one hand and the necessary capacity
on the other were both wanting, and the clash of powers disturbed the peace
until the merchant adventurers became at last convinced that the Government
meant to have its way, and to maintain the modicum of civil jurisdiction
introduced by the Government's commission.
A further step was taken towards the facilitating the trial of the more serious crimes by the insertion in the commission of Governor Drake in 1750,
of a clause empowering him to appoint commissioners of Oyer and Terminer.
Under the Statute of William III., persons charged with murder and all other
capital offences had to be taken to England for trial. The inconvenience
and frequent defeat of justice resulting from this provision impressed the Board
at an earlier date, but the fear of the Privy Council that the powers of such
a commission might be abused in the Island led them to withhold this
authority for some years.¹ Other innovations during this period included
the establishment of a court of vice-admiralty (1737); the appointment of
a naval officer to collect fees upon clearance of vessels employed in the fishery
(1741), and the opening of a custom house (1762).
The situation of Newfoundland at this period in relation to the other British possessions is succinctly stated by James Abercromby. In a work
bearing the title of “An Examination of the Acts of Parliament relative to the
Trade and Government of the American Colonies” and dated May 1752,
he says, after an elaborate description of the constitutions and governments
of the several colonies, “Having thus stated the different and particular
constitutions in all these colonies. For as to that of Newfoundland, though
ranked amongst the best, and first, in point of property belonging to this
Kingdom, from the discovery thereof by Cabot, for Henry VII in the year
1497, yet the object of that Government relates to a kind of police amongst
fishermen, and to them only.”²
It is clear that at the time Labrador was placed under the care and inspection of the Governor of Newfoundland, the Island was neither more nor
less than what Abercrombie declared it to be—simply a fishery; and that the
inhabitants were regarded as mere obstacles to progress, which being human
had to be tolerated, and that the preservation of such measure of order as
existed among them was part of the general scheme under which the fisheries
was conducted.
Nor will the conditions prevailing in 1763 be found to have changed in
1 Reeves, op cit. p. 1898.
2 Shelburne Correspondence, Vol. 47.
p. 1688
any essential respect, save one, in 1809. The commission and instructions
issued to Governor Duckworth were similar to those under which Graves
carried on his duties from 1763 till 1765. The period of his stay each year
in Newfoundland and Labrador waters coincided, as did Graves', with the
season in which British fishermen worked those waters. The reports of each
show that both were occupied exclusively with the fisheries. Duckworth
displays the same hostility to an increase of inhabitancy or to anything that
would give the Island the character of a colony, as forms a principal feature
in the reports of the earlier governor.
No indefeasible title existed to real property in any part of the Island
in 1810. Though real property was frequently alienated or mortgaged, the
purchasers or mortgagees could found their acquired titles on nothing more
secure than on such interests as inhered in the holder at the time of the alienation
or mortgage. All transactions in real property were subject to the
rule of caveat emptor.
Employing the figure used by Knox¹ and Reeves² when they likened
Newfoundland to a great ship, it might be said that the holders of real property
were passengers on the ship who had made the voyage so often and had
occupied the same sleeping quarters so long, that the captain and their fellow
passengers alike came to recognize that they had a sort of title to those quarters.
The titles were recognized to such an extent, that the holders took for themselves
the right of disposing of their quarters, but always subject to the supreme
right of the captain to resume possession, whenever for any reason it seemed
to him necessary.
The only important change that took place during the forty-seven years
that intervened between the governorships of Graves and Duckworth was in
the mode of administering justice.
The reluctantly exercised powers of the fishing admirals were first
reinforced, and afterwards usurped by the commanders of the King's ships.
These commanders held under the statute an appellate jurisdiction from the
decisions of the fishing admirals, and this appellate jurisdiction became,
under the necessities of the situation, an original jurisdiction, which was
recognized by the Governors, who conferred on the commanders the title of
Surrogates. The surrogates did not confine their attention to the class of
cases to which the fishing admirals were limited. They included within
their range the cognizance of debts, and all other causes of complaint; seeking
guidance from the Statute of Wm. III, the instructions of the Governors,
and their own good sense.³
The Governor, himself, took an important hand in the administration
of justice. He presided in the Court of Sessions, and heard and determined
every class of action, civil and criminal.4
In the absence of the Governor and Surrogates,—for it must be remembered
1 Extract from Evidence, April 24, 1793. p. 1903.
2 Extract from Evidence, June 17, 17 93, p. 1916.
3 Reeves, op cit. p. 1903.
4 Ibid, p. 1903.
p. 1689
that they were in Newfoundland only during the fishing season—the Court
of Vice-Admiralty and the Sessions were the resort of all who had complaints
of a civil nature, requiring remedy. The Vice-Admiralty Court, being solely
a court of revenue, had no jurisdiction beyond its limited sphere; and the
Sessions were, as was stated by the Attorney General, courts of criminal
jurisdiction only. But both supplied an elementary need, and that was their
justification.¹
But these devices to supply the deficiencies of a judiciary system, rested
on no legal foundation, and therein lurked a danger. So long as there was
an absolute acquiescence in the decisions of these courts, all was well. The
danger was that some person would be dissatisfied with a decision and the
execution ensuing, and upset the whole system. This happened during the
governorship of Rear-Admiral Edwards (1779-1782).² Some persons, discontented
with a judgment made by him in court at St. Johns, and carried
into execution by the sheriff, brought an action for trespass against the Governor
at Exeter. The case was settled before it got before the jury, but it paralyzed
the powers which the Governors had assumed the right to exercise.
But the Governors, whose sense of their duty forbade them to leave the
community without some regulative authority to preserve it from anarchy,
hit upon the plan of receiving petitions from complainants, and, after having
had enquiry made by their secretaries, wrote their opinion at the bottom of
the petitions with such advice, as, if followed, would have the effect of complete
justice.³
This mode of dealing out justice was satisfactory in many cases. Those who did not find it acceptable, repaired to the courts of session, and vice-admiralty.
These courts rested on no better foundation than the Governor's
court, as regards many of the cases brought before them, but it is not recorded
that their authority was challenged.
In 1789, Governor Milbanke determined to put the dispensation of justice on a surer foundation, and by a straining, indeed an over-straining, of the
terms of his commission, conceived he had the power to establish a regular
court, and he erected a Court of Common Pleas, appointing Judges thereto.4
As this court had to encounter the hostility of the adventurers and merchants,
it was considered necessary that there should be no legal doubts as to its
authority, and in 1791, Parliament took the matter in hand and empowered
the King to institute a court of civil jurisdiction to consist of a chief justice
and two assessors, who would hear and determine all civil causes, with an
appeal in certain cases to the King in Council.5
In 1793, this Court was replaced by one of enlarged scope. Authority
was given to the King to institute a Supreme Court, with full criminal as well
as civil jurisdiction. This Court would be presided over by the Chief Justice,
1 Reeves, op. cit. p. 1904.
2 Ibid, p. 1905.
3 Ibid, p. 1905.
4 Ibid, p. 1906.
5 31 Geo. III. c. 29. Vol. 1, p. 287.
p. 1690
alone. Authority was given to the Governor, with the advice of the Chief
Justice, to establish Surrogate Courts to hear all civil causes. Appeals in
certain cases were allowed from the Surrogate Courts to the Supreme Court,
and in certain others from the Supreme Court to the King in Council. This
act was continued by renewals until 1809, when its scope was widened to
include the Coast of Labrador.
In appearance, an advance had been made in the situation on the Island; actually, matters remained, in all essential respects, as they were. It was
still a government, which had its sources in the fishery carried on from the
West of England. It came into life with the arrival of the fishing fleet in
the spring, and expired with the departure of the fleet in the autumn. With
the Governor at their back, the justices were as effective as the hostility of the
harbour admirals permitted them to be. When the Governor returned to
England in October, the power which lay behind the commissions of the
justices disappeared with him.
That this change in the mode of administering justice, which was anticipated
by the Government at home, would not in its opinion alter the character of
the Island as simply a fishery, is clear from the report of the Board of Trade
of June 8, 1763, which was the foundation of the Royal Proclamation of
October 7th of the same year. This Proclamation was the charter under
which civil government was introduced into Canada and other territories
acquired by Great Britain in the Treaty of Paris of the same year. In this
report, the Board of Trade, after recommending the establishment of civil
government in those parts of the new possessions where planting and settlement,
as well as trade and commerce were intended, go on to say:
“But as no such regular civil government is either necessary or
can be established where no perpetual residence or planting is intended:
It will therefore be sufficient to provide for the free trade of all Your
Majesty's subjects under such regulations and under such administration
of Justice as is best suited to that end. Such we apprehend to be the
case of Newfoundland, where a temporary fishery is the only object.”¹
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